HKSAR v. TAN CHIN TENG

CACC 61/2024 [2025] HKCA 179

On appeal from [2023] HKCFI 2569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 61 OF 2024

(ON APPEAL FROM HCCC NO 79 OF 2021)

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J U D G M E N T

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1.  This is an application for leave to appeal against sentence out of time.

2.  On 29 September 2023, the applicant (trial designation D2)  was sentenced to 16 years and 2 months’ imprisonment by Deputy High Court Judge Douglas Yau (the judge)  following her plea of guilty to a joint charge with two others of trafficking in a dangerous drug, namely 16.175 litres of a liquid containing 9.322 kilogrammes of a solid upon drying containing 6.4688 kilogrammes of cocaine (Count 1).

3.  On 15 March 2024, the applicant filed a notice of application for leave to appeal against sentence out of time by about 5 months.  She stated in the notice that her application was out of time because she had learned that the sentence of her co-defendant, who was the mastermind of the case, was comparatively short.  She felt aggrieved that her sentence was similar to that of the mastermind.  She also indicated that she was willing to cooperate with the prosecution. 

4.  The mastermind applicant refers to is Fong Ling Po (trial designation D1).  The other person involved in the case was Chien Sin Wei (trial designation D3), who had been separately charged for the same offence in Count 1.  The three defendants, Malaysian nationals, appeared before the judge for sentence.  The applicant and D1 agreed to the same summary of facts.  D1 faced an additional charge of trafficking in 236 grammes of ketamine narcotic (Count 2), which was relatively minor compared to the joint charge with D2 and D3.  According to the summary of facts, the applicant and D3 were intercepted by the police when they were about to enter a flat, which was under surveillance.  Inside the flat,  was D1 and another woman.  The applicant was the tenant of this flat.  The police searched the flat and found nine bottles of purported red wine, containing the quantity of cocaine in liquid form, as particularised in Count 1.  D1 was the tenant of another flat, which the police searched.  They found two packets of ketamine particularised in Count 2 that D1 admitted she was to sell to others for a reward of $1000. 

5.  It was stated in the summary of facts that D2 admitted under caution that she received $3000 to come to Hong Kong to deliver the dangerous drugs in the wind. 

6.  In respect of Count 1, the judge adopted a starting point of 26 years and 11 months’ imprisonment for the quantity of cocaine narcotic.  He enhanced the starting point by 7 months to 27 years and 6 months’ imprisonment for the aggravating factor that the three defendants were foreigners entering Hong Kong to commit criminal offences. 

7.  D1 had cooperated with the police and made two non-prejudicial statements, implicating D3.  She indicated her willingness to give evidence against D3 at his trial, who had pleaded not guilty to Count 1 in the meantime.  In the circumstances, the judge reduced her sentence by 40% (incorporating the one third discount for her guilty plea), which resulted in a sentence of 16 years and 6 months’ imprisonment.  The judge sentenced D1 to 5 years and 10 months’ imprisonment in respect of Count 2 after he adopted a starting point of 8 years and 6 months’ imprisonment, which he enhanced by 3 months for coming to Hong Kong to commit a crime and then reduced the notional starting point of 8 years and 9 months’ imprisonment by one third for her guilty plea to 5 years and 10 months’ imprisonment.  After applying the totality principle, the judge ordered that 4 months of the sentence in Count 2 be served consecutively to the sentencing Count 1, which resulted in a final sentence of 16 years and 10 months’ imprisonment.

8.  In sentencing the applicant, the judge found that she had played a similar role to that of D1, and he treated them for sentencing purposes as storekeepers of the drugs in Count 1.  He adopted a starting point of 26 years and 11 months’ imprisonment, which he enhanced by 7 months for her coming to Hong Kong to commit a crime.  The notional starting point of 27 years and 6 months’ imprisonment was reduced by 6 months for her participation in Father Wotherspoon’s anti-drug campaign to 27 years’ imprisonment.  The applicant had also cooperated with the police and indicated her willingness to give evidence against D3 at his trial.  For that reason, the judge reduced the term of 27 years’ imprisonment by 40% (incorporating the one third discount for her guilty plea), which resulted in a sentence of 16 years and 2 months’ imprisonment.

9.  According to the facts outlined to the court and admitted by the applicant, the judge regarded the applicant and D1 as storekeepers of the drugs and properly applied the sentencing guidelines on this basis.  The applicant’s claim that D1 was the mastermind does not accord with the facts that she agreed.  A summary of D1’s interview stated that she took instructions from “big sister”, while the summary of the applicant’s interview stated that she had been recruited by D1 and that she took instructions from D1 or Joey, who was their boss.  D1 and the applicant maintained two premises, D1 was the tenant of the premises where the drugs in Count 2 were found, while the applicant was the tenant of the premises where the drugs in Count 1 were found.  As already noted, D1 faced an additional charge, which the judge properly dealt with in accordance with the sentencing guidelines and principles. 

10.  There is no basis for the applicant’s complaint that she was treated disproportionately by the judge in respect of the sentence he imposed on her when comparing the sentence he imposed on D1.

11.  The application for leave to appeal against sentence out of time is refused.  Nevertheless, the applicant is reminded of her right to renew her application for leave out of time to the Court of Appeal, but she is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.